The Free Exercise of Religion Clause

Congress shall make no law . . . prohibiting the free exercise [of religion] thereof . . . .

—Vincent Phillip Muñoz

Introduction

President George Washington’s 1790 letter to the Hebrew Congregation of Newport, Rhode Island articulated the Founding Fathers’ conception of religious freedom: “It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights.”¹ Three interrelated ideas compose the Founders’ understanding of religious freedom as an “inherent” natural right: (1) Individuals possess religious freedom as an endowment from their Creator, not as something granted by the state; (2) when “we the people” ratified the Constitution and the political powers that govern under it, we did not give the government authority over the “inalienable” aspects of our right of religious exercise; and (3) the core meaning of this non-alienated aspect of religious free exercise is immunity from legal sanctions on account of one’s religious worship.

To grasp the Founders’ understanding, we must recall their natural rights political philosophy and attendant social compact theory of government. The Founders derived the natural right of religious free exercise from the obligation to worship the Creator according to conviction and conscience—an obligation that limits the state’s legitimate authority as expressly recognized in the First Amendment’s categorical text: “Congress shall make no law . . . prohibiting the free exercise [of religion].” The U.S. Supreme Court has floundered in its attempt to articulate a consistent account of the Free Exercise Clause’s meaning, perhaps because leading originalist scholars themselves disagree about what exactly the Founders’ natural rights philosophy means for First Amendment jurisprudence.

Religious Liberty as a Natural Right

The Founders articulated their natural rights understanding of religious freedom in their state declarations of rights and constitutions and in documents drafted in early church–state debates.² From 1776–1784, eight states drafted declarations of rights. All eight reveal that the Founders held religious liberty to be a natural right possessed by all individuals. Delaware, Pennsylvania, North Carolina, and Vermont, for example, declared with minor variations that “all men” have (or “every individual” has) a “natural and unalienable right to worship God according to the dictates of their own consciences.”³

In language that encapsulates the Founders’ natural rights constitutionalism, the 1784 New Hampshire Bill of Rights declares that “among the natural rights, some are in their very nature unalienable, because no equivalent can be given or received for them. Of this kind are the RIGHTS OF CONSCIENCE.”⁴ It goes on to say that “[e]very individual has a natural and unalienable right to worship GOD according to the dictates of his own conscience, and reason” and that “no subject shall be hurt, molested, or restrained in his person, liberty or estate for worshipping GOD, in the manner and season most agreeable to the dictates of his own conscience, or for his religious profession, sentiments or persuasion.”

As is true of all natural rights, the Founders held the right of religious liberty to be bounded. New Hampshire’s textual proviso recognized this limitation: a person could exercise his rights “provided he doth not disturb the public peace, or disturb others, in their religious worship.” The 1777 New York Constitution similarly declared that “the free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed, within this State, to all mankind.”⁵ But this liberty was bounded: “Provided, That the liberty of conscience, hereby granted, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State.” The Founders understood all natural rights to be a part of, and thus limited by, the natural law.⁶ Reasonable boundaries on religious exercises could be established because the Founders understood faith and reason to be complementary and compatible.

Many in the Founding generation grounded religious freedom in the Bible and Christianity in a manner articulated by Issac Backus, one of the Founding era’s leading preachers.⁷ Philosophically, the Founders’ natural rights understanding of religious freedom was articulated most powerfully by James Madison in his 1785 “Memorial and Remonstrance.”⁸

Madison provided two reasons for the “unalienable” character of the right to religious liberty. First, echoing John Locke’s argument in A Letter Concerning Toleration and Thomas Jefferson’s 1777 draft statute for religious freedom, Madison holds that the opinions of men, including their religious opinions, depend “only on the evidence contemplated by their own minds [and] cannot follow the dictates of other men.”⁹ Perhaps because of the argument’s philosophical thinness,¹⁰ Madison immediately adds a second, more original argument: The right of religious liberty is also inalienable “because what is here a right towards men, is a duty towards the Creator.” Moreover, “[i]t is the duty of every man to render to the Creator such homage and such only as he believes to be acceptable to him. This duty is precedent, both in order of time and in degree of obligation, to the claims of Civil Society.”

Madison here holds that our right to religious freedom follows from our duty to the Creator to worship in a manner that accords with our “reason and conviction.”¹¹ The ultimate grounding of our natural right to religious freedom is our more fundamental duties to God.

Madison’s argument presumes that these truths about the human person and the nature of religious obligation—that we are made to worship freely and according to conviction and conscience—are accessible to reason. They also are the foundation of limited government. Because our duties to our Creator are “precedent, both in order of time and in degree of obligation, to the claims of Civil Society,” we recognize that the inalienable character of the natural right to religious freedom places some aspects of religious exercise beyond the authority of government.

The Meaning of the Free Exercise Clause

The recognition in Founding-era state charters of natural rights, including the “unalienable” right of religious free exercise, served as the backdrop for the leading Anti-Federalist criticism of the proposed federal constitution—namely, that it lacked a declaration of rights. Other than the prohibition of religious tests for federal offices, the Constitutional Convention of 1787 devoted almost no attention to matters of church and state or religious liberty. Anti-Federalists’ criticisms led Representative James Madison and the Federalist-dominated First Congress to draft what would become the Bill of Rights.

Few firm conclusions can be drawn about the Free Exercise Clause’s original meaning from the First Amendment’s drafting record. (See Essay No. 159.) During the drafting of what would become the Second Amendment, members of the House of Representatives debated whether to include a provision for conscientious exemption from military service. That religious exemptions were debated in the context of the Second Amendment and after provisional free exercise text had been adopted may indicate that the drafters did not understand the right of free exercise to include a right of exemption; if so, the subsequent conscientious objector debate would have been superfluous.¹² But the drafting record is thin, and conclusions drawn from it are at best only probable. Founding-era state debates and documents seem to be the best available historical records to apprehend the Framers’ understanding of religious free exercise.

Belief-Action v. Exemption

The U.S. Supreme Court’s first significant religious liberty case, Reynolds v. United States (1879) held that the Free Exercise Clause deprived Congress “of all legislative power over mere opinion” but left it “free to reach actions which were in violation of social duties or subversive of good order.”¹³ The case was brought by George Reynolds, secretary to Mormon Church leader Brigham Young, who argued that the clause provided religious believers such as himself with immunity from criminal prosecution for violation of federal laws prohibiting bigamy and polygamy. The Court rejected Reynolds’s claim by distinguishing religious beliefs, which were constitutionally protected, from religiously motivated actions that were subject to governmental regulation.

The belief-action doctrine more or less guided the Court through a number of cases in the 1940s, including Cantwell v. Connecticut (1940),¹⁴ in which the Court incorporated the Free Exercise Clause to apply against the states. The Court’s most notable case from the era, West Virginia State Board of Education v. Barnette (1943), held that the First Amendment prohibited government-run schools from mandating that students must recite the Pledge of Allegiance and salute the American flag. Jehovah’s Witness children brought the case, but the Court’s reasoning made clear that no student, not just those with religious objections, could be coerced to recite the Pledge or salute the flag.¹⁵

In Sherbert v. Verner (1963), the Court set aside the belief-action distinction and inaugurated its exemption construction of the Free Exercise Clause.¹⁶ Justice William Brennan’s sweeping, non-originalist majority opinion held that the First Amendment provides religious believers with a presumptive right to be exempt from otherwise valid laws and administrative actions that they find religiously burdensome. Brennan shifted the focus of judicial inquiry from jurisdictional limits on legislative power to the impact of laws and regulations as experienced by religious believers. Sherbert also placed the burden of proof on the state to show that it was advancing a “compelling state interest” if and when a law or application of law burdened religious believers.

Under the Sherbert approach, religious litigants won some notable victories, but they did not always prevail. Wisconsin v. Yoder (1972) ruled that Amish parents possessed a constitutional right to be exempt from mandatory school attendance laws.¹⁷ But United States v. Lee (1982) held that members of the Old Order Amish could be made to pay Social Security taxes against their religious objections.¹⁸ And Lyng v. Northwest Indian Cemetery Protective Association (1988) held that the Free Exercise Clause did not prevent the government from building a road through federal lands traditionally used by Native American tribes for religious purposes.¹⁹

Permissible v. Mandated Exemption

The Court significantly shifted its free exercise jurisprudence again in Employment Division v. Smith (1990), curtailing Sherbert and its exemption-granting approach.²⁰ While recognizing that religious accommodations made by the political branches were constitutionally permissible, Justice Antonin Scalia’s majority opinion held that religious exemptions were not constitutionally mandated. The Free Exercise Clause, Scalia wrote, “does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’”²¹

Smith was met with a torrent of criticism. Congress responded by passing the Religious Freedom Restoration Act (1993), which attempted to overrule Smith by legislating Sherbert-like exemptions. Prominent legal scholars also responded critically. Most notably, law professor Michael McConnell argued in a pair of prominent law review articles against Scalia’s Smith construction and for Brennan’s Sherbert construction on originalist grounds.²²

Three of McConnell’s arguments deserve particular emphasis because of their notable influence, including their influence on the free exercise jurisprudence of Justices Sandra Day O’Connor and Samuel Alito. First, McConnell highlights the text of some of the Founding-era state charters, including the New York Constitution of 1777. McConnell contends that the peace and safety “provisos” recognize that religious believers have a right to be exempt from otherwise valid laws, except when the state is acting to prevent “acts of licentiousness” or “practices inconsistent with the peace or safety” of the state.²³

Second, McConnell interprets Madison’s logic in the “Memorial and Remonstrance” to support exemptions. As noted, Madison writes that our duty to the Creator is “precedent, both in order of time and degree of obligation, to the claims of civil society.” McConnell reasons that if religious obligations to God are of higher priority than legal obligations imposed by the state, then a Madisonian understanding of religious free exercise is “consonant” with the exemption approach originally adopted in Sherbert.²⁴

Third, McConnell contends that the Founders’ exemption-granting practices, including “the history of oath requirements, military conscription, [and] religious assessments,” demonstrate “that religion-specific exemptions were familiar and accepted means of accommodating these conflicts”25 between perceived obligations of faith and the demands of the law.

Justice O’Connor employed McConnell’s scholarship extensively in her dissenting opinion in City of Boerne v. Flores (1997), arguing that Smith was incorrectly decided. “The practice of the Colonies and early States bears out the conclusion,” O’Connor claimed, “that, at the time the Bill of Rights was ratified, it was accepted that government should, when possible, accommodate religious practice.”²⁵ Following McConnell, O’Connor concluded that religious believers generally have a presumptive right to be exempt from burdensome but otherwise valid laws.²⁶

In the same case, Justice Scalia defended his no-exemption Free Exercise Clause construction, this time providing the originalist argumentation that his Smith opinion lacked. Scalia relied on Professor Philip Hamburger’s scholarship²⁷ arguing that the “provisos” of early American charters communicated that the right of religious liberty did not include a right to break the law.²⁸ Scalia noted that the “Memorial and Remonstrance” was directed against adoption of the law at issue, not a plea for exemptions from it,²⁹ and that Founding-era exemption-granting practices were legislative rather than judicial in character. However, the fact that “legislatures sometimes (though not always) found it appropriate to accommodate religious practices does not establish that accommodation was understood to be constitutionally mandated by the Free Exercise Clause.”³⁰ According to Scalia, the Free Exercise Clause protects only against legislation taken “for” or “in respect of” religion and not against neutral and generally applicable state actions that indirectly or incidentally burden religious individuals or institutions.³¹

In spite of Scalia’s opinions, McConnell’s exemption interpretation of the Free Exercise Clause has become the leading originalist understanding, though not all prominent originalists agree with it. As I read Madison, natural rights constitutionalism requires equality before the law, not special accommodations such as exemptions.³²

Moreover, in my view, the exemptionist construction of the First Amendment is not supported by the Founders’ conception of religious liberty as an “unalienable” natural right more generally. In the Founders’ social compact constitutionalism, “inalienability” is a jurisdictional concept that defines the limits of the state’s power. We the people do not alienate—that is, do not grant government jurisdictional authority over—our inalienable rights. Therefore, the state lacks authority to prescribe, proscribe, or regulate religious exercises as such. But when the legislature adopts laws within the powers we have granted to it, those laws constitutionally can be applied against religious individuals. In this understanding, the First Amendment does not compel exemptions from otherwise valid laws, including the type of laws at issue in Smith (welfare eligibility regulations and criminal drug laws) or in City of Boerne (land use regulations), even if religious individuals and institutions find them burdensome.

Recent Free Exercise Doctrine

Smith remains the Court’s leading Free Exercise Clause precedent, but it does not govern all Free Exercise Clause cases. The Court employs heightened scrutiny when a law is not neutral toward religion or is not generally applicable. Church of the Lukumi Babalu Aye v. City of Hialeah (1993) found unconstitutional city ordinances targeting Santerian religious practices.³³ Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) found that a government agency failed to act “neutrally” toward a Christian cakeshop owner who had refused to design a wedding cake for a same-sex couple.³⁴ In Fulton v. City of Philadelphia (2021), a unanimous Court found that city officials had violated the Free Exercise Clause by refusing to contract with Catholic Social Services because of the latter’s policy of not licensing same-sex couples to be foster parents. In an opinion by Chief Justice John Roberts, the Court held that the Philadelphia non-discrimination ordinance in question was not neutral and generally applicable because it provided for exemptions at the sole discretion of the city’s civil rights commission.³⁵

The Roberts Court, by adjudicating the Free Exercise Clause’s requirements of government neutrality and non-discrimination, has abandoned the “separationist” idea that the Establishment Clause requires the government to take proactive steps so as not to advance, endorse, or fund religion. In its place, the Roberts Court has held that the Free Exercise Clause prohibits state discrimination against religious individuals based on religious status or potential religious uses of otherwise available government funds.

In Trinity Lutheran v. Comer (2017), the Roberts-led Court found that the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise Clause.³⁶ Espinoza v. Montana Department of Revenue (2020) similarly set aside a Montana rule that prohibited recipients of tax-credit scholarships from using them at private religious schools.³⁷ Carson v. Makin (2022) found unconstitutional a Maine law that prohibited students from using otherwise available state tuition assistance at religious or “sectarian” private schools.³⁸ And in Kennedy v. Bremerton (2022), the Court found unconstitutional a public high school’s policy that prohibited a coach from praying on the fifty-yard line after his team’s games.³⁹ Justice Neil Gorsuch’s majority opinion declared that the Free Exercise Clause “does perhaps its most important work by protecting the ability of those who hold religious beliefs of all kinds to live out their faiths in daily life through ‘the performance of (or abstention from) physical acts.’”⁴⁰

At the same time the Court has interpreted the Free Exercise Clause to mandate equal treatment of religious individuals in various government aid programs, the Court also has interpreted the Free Exercise Clause’s protections to reach beyond the mandate of neutrality for religious institutions. Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012) and Our Lady of Guadalupe School v. Morrissey-Berru (2020) recognized the “ministerial exception,” establishing that the Free Exercise Clause protects churches’ autonomy in the selection and employment of their own ministers.⁴¹ The clause thus shields religious institutions from most employment anti-discrimination laws in the hiring and selection of those who are considered “ministers.”⁴²

Open Questions

In Fulton, Justice Alito wrote a lengthy concurring opinion, joined by Justices Clarence Thomas and Neil Gorsuch, calling for Smith’s reversal. Invoking McConnell’s originalist scholarship, Alito argued that “free exercise” seems to extend protection to all religiously motivated actions, not just legislation that targets religion for unfavorable and unequal treatment. Justices Amy Coney Barrett and Brett Kavanaugh joined Chief Justice Roberts’s opinion, declining to overrule Smith, but in separate concurrences posed a series of questions about what might replace Smith. Whether (or perhaps when) Smith will be overturned remains to be seen.

Whatever remaining questions and disagreements persist among originalist judges and scholars, they all now agree that the Free Exercise Clause protects the right of individuals to pray and worship according to conscience and without fear of state-imposed punishment or disabilities. This rule clearly was within the Framers’ design and understanding when they declared our “first freedom” to be an inalienable natural right.

1. Letter from George Washington to the Hebrew Congregation in Newport, Rhode Island (Aug. 18, 1790), https://perma.cc/D3HD-LSNG. ↩︎
2. Vincent Phillip Muu00f1oz, Church and State in the Founding-Era State Constitutions, 4 Am. Pol. Thought 1 (2015). ↩︎
3. Del. Decl. of Rts. of 1776, § 2; Pa. Const. of 1776, Decl. of Rights, art. II; N.C. Const. of 1776, Decl. of Rights, art. XIX; Vt. Const. of 1777, Decl. of Rights, art. I. ↩︎
4. N.H. Constitution of 1784, Bill of Rights, arts. IV & V. ↩︎
5. N.Y. Const. of 1777, art. XXXVIII. ↩︎
6. Alexander Hamilton, The Farmer Refuted, &C. (Feb. 23, 1775), https://perma.cc/CLJ2-HFHR; James Wilson, Lectures on Law, in 1 Collected Works of James Wilson 639 (Kermit L. Hall & Mark David Hall eds., 2007). ↩︎
7. Vincent Phillip Muu00f1oz, Religious Liberty and the American Founding: Natural Rights and the Original Meanings of the First Amendment Religion Clauses 82–86 (2022); John Witte, Joel A. Nichols, and Richard W. Garnett, Religion and the American Constitutional Experiment 35–58 (5th ed. 2022). ↩︎
8. James Madison, Memorial and Remonstrance Against Religious Assessments (ca. June 20, 1785), https://perma.cc/P7J8-L2AH. ↩︎
9. Id. ↩︎
10. St. Augustine, Letter 93 to Vincentius (c. 408), https://perma.cc/9YLH-H6Y2; Vincent Phillip Muu00f1oz, God and the Founders: Madison, Washington, and Jefferson 92–97 (2009). ↩︎
11. Madison, Memorial, supra. ↩︎
12. Vincent Phillip Muu00f1oz, The Original Meaning of the Free Exercise Clause: The Evidence from the First Congress, 31 Harv. J.L. & Pub. Pol’y 1083, 1109–19 (2008); Fulton v. City of Philadelphia, 593 U.S. 522, 570–94 (2021) (Alito, J., concurring). ↩︎
13. Reynolds v. United States, 98 U.S. 145, 164 (1879). ↩︎
14. 310 U.S. 296 (1940). ↩︎
15. 319 U.S 624, 634–35 (1943). ↩︎
16. 374 U.S. 398 (1963). ↩︎
17. 406 U.S. 205 (1972). ↩︎
18. 455 U.S. 252 (1982). ↩︎
19. 485 U.S. 439 (1988). ↩︎
20. 494 U.S 872 (1990). ↩︎
21. Id. at 879 (citing United States v. Lee, 455 U.S. at 263 n.3). ↩︎
22. Michael W. McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409 (1990); Michael W. McConnell, Free Exercise Revisionism and the Smith Decision, 57 Univ. Chi. L. Rev. 1109 (1990). ↩︎
23. McConnell, Origins, supra at 1461–66. ↩︎
24. Id. at 1453. ↩︎
25. 521 U.S. 507, 557 (1997) (O’Connor, J., dissenting). ↩︎
26. Id. at 554–55 (O’Connor, J., dissenting). ↩︎
27. Philip A. Hamburger, A Constitutional Right of Religious Exemption: An Historical Perspective, 60 Geo. Wash. L. Rev. 915 (1992); Philip A. Hamburger, Natural Rights, Natural Law, and American Constitutions, 102 Yale L. J. 907 (1993). ↩︎
28. City of Boerne v. Flores, 521 U.S. 507, 539–40 (1997) (Scalia, J., concurring). ↩︎
29. Id. at 541–42 (Scalia, J., concurring). ↩︎
30. Id. at 541 (Scalia, J., concurring) (emphasis in original); Gerard V. Bradley, Beguiled: Free Exercise Exemptions and the Siren Song of Liberalism, 20 Hofstra L. Review 245 (1991). ↩︎
31. City of Boerne, 521 U.S. at 538 (Scalia, J., concurring). ↩︎
32. Vincent Phillip Muu00f1oz, James Madison’s Principle of Religious Liberty, 97 Am. Pol. Sci. Rev. 17, 23–24 (2003). ↩︎
33. 508 U.S. 520 (1993). ↩︎
34. 584 U.S. 617 (2018). ↩︎
35. 593 U.S. 522 (2021). ↩︎
36. 582 U.S. 449 (2017). ↩︎
37. 591 U.S. 464 (2020). ↩︎
38. 596 U.S. 767 (2022). ↩︎
39. 597 U.S. 507 (2022). ↩︎
40. Id. at 524 (citing Smith, 494 U.S. at 877). ↩︎
41. 565 U.S. 171 (2012); 591 U.S. 732 (2020). ↩︎
42. Richard W. Garnett & John M. Robinson, Hosanna Tabor, Religious Freedom, and the Constitutional Structure, 2011–12 Cato Sup. Ct. Rev. 307 (2012); Richard W. Garnett, “The Freedom of the Church”: (Towards) An Exposition, Translation, and Defense, 21 J. Contemp. Legal Issues 33 (2013). ↩︎